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Intragroup debt financing and transfer pricing in Australia

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Published on 01 Jun 14 by "THE TAX SPECIALIST" JOURNAL ARTICLE

Intragroup financing within multinational groups can generate tax risk, and that tax risk has increased in recent years. One factor is the tendency on the part of revenue authorities to view intragroup debt funding as a means by which corporations can shift their tax exposure. This article considers transfer pricing issues and observations as they impact on intragroup debt. The article also touches on thin capitalisation.

The article considers quantum and pricing of debt, including the role of thin capitalisation, comparable transactions, the case law on key transfer pricing questions, pricing guarantees between parents and subsidiaries, the role of credit ratings, and how the Commissioner could apply the arm’s length principle embodied in Australian tax law to intragroup debt finance practices. Finally, the article considers how Australia’s domestic transfer pricing rules interact with the associated enterprises article contained in Australia’s double tax agreements.

Author profile

Christopher Kinsella CTA
Chris is a tax partner based in Sydney with the law firm Holding Redlich. Chris has over 30 years’ experience advising clients in relation to tax matters, particularly early ATO engagement, ATO access powers, tax audits, tax litigation and dispute resolution. Chris has acted for clients in banking/insurance, property/infrastructure, pharma, mining/energy, manufacturing and professional services. The Holding Redlich tax controversy team represents taxpayers (and their advisors) in tax disputes in both the Federal Court and the AAT. Focus areas include anti-avoidance, transfer pricing and international tax. Notable cases that Chris has been involved with include the Chevron transfer pricing case and the Resource Capital Fund tax cases. Recent topics receiving attention from clients also include legal professional privilege, promoter penalties and the ATO’s broader attitude to tax advisers more generally. Chris is the chair of the Tax Institute’s Dispute Resolution Committee and the chair of the Number One Tax Discussion Group. Chris is accredited in dispute resolution with the NSW Law Society. - Current at 14 December 2021
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